Citation Nr: 1235687	
Decision Date: 10/16/12    Archive Date: 10/23/12

DOCKET NO.  10-22 378A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for a neurological disorder, to include primary lateral sclerosis (PLS) and multiple sclerosis (MS).

2.  Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1976 to August 1982, from February 2003 to December 2003, and from April 2004 to August 2004.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the claims on appeal.

The Veteran had a hearing before a representative of the RO in December 2009.  A transcript of the hearing has been generated and associated with the claims file.

The record reflects that after the final supplemental statement of the case (SSOC) the Veteran submitted additional relevant evidence to the Board.  No subsequent SSOC was issued, but this is not necessary because the evidence was accompanied by a waiver of initial review by the agency of original jurisdiction (AOJ) in accordance with 38 C.F.R. § 20.1304 (2011).  To the extent that records submitted after the August 2011 SSOC were not included in the waiver of initial review by the AOJ, in light of the favorable decision as to the PLS claim, the Board finds that a remand is not required for the RO to consider the newly submitted evidence in the first instance.  See 38 C.F.R. § 20.1304; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Affording the Veteran the benefit of the doubt, there is at least an approximate balance of positive and negative evidence as to whether the Veteran has a current diagnosis of PLS as a result of his military service.


CONCLUSION OF LAW

Resolving doubt in favor of the Veteran, his PLS was incurred during his military service.  38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  In light of the favorable decision herein as to entitlement to service connection for PLS, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran.  

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2011).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection for multiple sclerosis will be presumed if manifest to a compensable degree within seven years following active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).  However, while the record indicates some diagnoses of MS, subsequent medical evidence clearly demonstrates that such diagnoses were made in error and that the Veteran's sole current neurological disorder is PLS.  

 Additionally, effective September 23, 2008, VA issued a regulation establishing presumptive service connection for amyotrophic lateral sclerosis (ALS).  See 38 C.F.R. § 3.318; see also 73 Fed. Reg. 54691 (Sept. 23, 2008).  This regulation provides that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease if the Veteran had active, continuous service of 90 days or more.  38 C.F.R. § 3.318.  However, the presumption of service connection for ALS does not apply if there is: 1) affirmative evidence that ALS was not incurred during or aggravated by such service, or 2) affirmative evidence that ALS was caused by the Veteran's own willful misconduct.  Id.

The Board acknowledges that the Veteran's representative has argued and the medical evidence supports that PLS is a variant of ALS.  The Veteran's representative argues that the Veteran's PLS claim, therefore, falls under the auspices of 38 C.F.R. § 3.318.  As will be discussed in greater detail below, the Board concludes that the Veteran's PLS was directly incurred during his military service and, as such, the question of the applicability of 38 C.F.R. § 3.318 is moot and need not be further considered.  

In the absence of presumption, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The Veteran contends he incurred PLS during his first period of active duty service.  In the alternative, the Veteran asserts that his PLS was aggravated beyond its natural progression as a result of the stress involved in his second and third periods of active service.  

The Veteran's service treatment records from his first period of active service do not include complaints, diagnoses, or treatment for PLS or symptoms associated with PLS.  Indeed, the Veteran does not contend that he experienced discernible symptoms of PLS during his first period of service.

Instead, the Veteran contends and the medical evidence of record supports that he began experiencing lower extremity neurological problems, primarily in the left lower extremity, beginning in the period from 1987 to 1990.  The medical evidence indicates that the Veteran began treatment for a possible motor neuron disease in approximately June 1995.  At that time, the Veteran reported problems with left foot weakness while running beginning approximately five years previously.  He reported undergoing several procedures to the left knee, back, and neck for the same and similar symptoms over the preceding years.  Following examination, the Veteran initially was diagnosed with MS.  This diagnosis continued for several years and, indeed, was the original neurological claim for benefits raised by the Veteran in October 2005.  

During this time period the Veteran continued to fulfill his reserve duty functions.  The Veteran was assigned a permanent profile in March 1996 for decreased left lower extremity strength and a limp on walking.  The Veteran's pre- and post-deployment physical examinations did not include reported worsening lower extremity neurological symptoms or other problems attributed to his ongoing neurological treatment.  Indeed, in November 2003, for example, the Veteran indicated that his overall health was better than the last time examined.  In a post-deployment health assessment that same month, the Veteran denied weakness, muscle aches, numbness, tingling, or swollen, stiff, or painful joints.  In January 2004, the Veteran indicated that he engaged in a heavy exercise regimen at least 3 times per week.  In December 2004, the Veteran denied any bone, joint, or muscle problems that prevented regular exercise or became bothersome during exercise and engaged in 20 minutes or more of exercise 7 times per week.

The Veteran's neurological diagnosis was changed from MS to PLS in approximately 2006.  In August and October 2010 letters, a private neurologist stated that the prior diagnoses of MS were incorrect and that the Veteran's correct diagnosis was PLS.  Moreover, the letters stated, "I feel the patient has progressive symptoms (longstanding progressive left lower extremity muscle weakness) dated back to at least 1987.  It is not uncommon for a patient like [the Veteran] to have symptoms much earlier than 1987 since it takes time for the patient to notice the deteriorating level of function."  In addition, the neurologist indicated that studies showed that stress exacerbated ALS and given PLS was a variant of ALS that it was at least as likely as not that the Veteran's PLS was aggravated beyond its natural progression by his years in military service.

The Veteran was afforded a VA examination in June 2011.  The examiner noted review of the claims file.  The examiner discussed the medical and lay evidence of record.  Based on the examination request, the examiner provided an opinion only as to whether the Veteran's PLS was aggravated beyond its natural progression by his second and third periods of military service.  The examiner concluded that aggravation of the Veteran's PLS due to his second and third periods of military service was less likely than not.  The rationale for the opinion was that the Veteran never complained of or was treated for stress during these periods of service and that the progression of symptoms in PLS varies by the individual.  That said, the Veteran's symptoms began in the late 1980s, his symptoms had not advanced excessively from that time, and at the time of examination the Veteran did not have any of the symptoms indicating terminal phases of PLS.

In October 2011, another private neurologist provided a letter in support of the Veteran's claim.  The neurologist discussed the Veteran's service history and onset and progression of symptomatology.  The examiner concluded,

[The Veteran] carries a diagnosis of motor neuron disease, primary lateral sclerosis variant of ALS since all of these findings are upper motor neuron.  It is my medical opinion that the onset of [the Veteran's] ALS [sic] probably began during his time of active duty.  We generally believe that the actual disease process in motor neuron disease begins 5 to 10 years before the clinical manifestations first become present.

Thus, the Veteran clearly has a current diagnosis of PLS.  The crucial inquiry, therefore, is whether his current PLS was incurred in or otherwise caused by his military service.  Resolving all doubt in the Veteran's favor, the Board concludes it was.

In reaching that decision, the Board finds the October 2011 private neurologist's letter of significant probative value.  The neurologist provided a rationale for his opinion that the Veteran's PLS probably began during his first period of military service.  Specifically, the neurologist noted that PLS symptomatology typically is not noted until 5 to 10 years after the incurrence of the disorder.  This is the only medical opinion of record expressly discussing entitlement to service connection on a direct basis.  While the Board finds the June 2011 VA examiner's opinions of great probative value, these opinions relate only to the aggravation of the Veteran's PLS during his second and third periods of service and do not address whether onset occurred during the first period of service.  The Board also notes that the August and October 2010 private neurologist's letters note that it would not be uncommon for symptom onset of PLS to have begun years before 1987, as it takes time for the patient to notice deteriorated function.  These statements support the conclusions of the October 2011 private neurologist.

In summary, the sole medical evidence opining as to the timing of onset of the Veteran's PLS indicates that it began during his first period of military service.  The October 2011 private neurologist's opinion relies on a basis and rationale discussed therein.  The June 2011 VA opinion discusses aggravation, but did not specifically address the onset of the Veteran's PLS.  In light of the evidence of record, the Board concludes that the evidence is at least in relative equipoise as to whether the Veteran's current PLS was incurred in military service.  When the totality of the evidence supports the Veteran's claim or is in relative equipoise, the Veteran prevails on his claim.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

Entitlement to service connection for primary lateral sclerosis is granted.


REMAND

The Veteran also is seeking entitlement to service connection for a low back disability.  Specifically, the Veteran contends that a preexisting low back disability was aggravated beyond its natural progression as a result of his second and third periods of active service.  A review of the claims file reveals that a remand is necessary before a decision on the merits can be reached for the low back claim.

VA's duty to assist also includes a duty to provide the Veteran with a proper medical examination or opinion when warranted.  In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

In this case, the Veteran's initial period of active service, from March 1976 to August 1982 included no complaints, treatment, or diagnosis of a low back disorder.  Indeed, the Veteran concedes that he did not have back problems during his initial period of active service.  Thereafter, however, the Veteran underwent lumbosacral spinal surgeries in 1991 and 1995, based on evidence of a bulging disc at L5-S1 and in an effort to relieve lower extremity symptomatology.  

The Veteran's service treatment records indicate that in 1995 or 1996 he was given a permanent L2 profile.  In September 1999, the Veteran was evaluated for a new waiver for weakness and atrophy of the left lower extremity with significant limp.  The examiner outlined the Veteran's low back and neurological treatment history (at that time believed to be MS, as discussed above) and following examination diagnosed left peroneal nerve entrapment, treated surgically; L5, S1 herniated nucleus pulposis, treated surgically; anterior cervical fusion C5, C6, for unknown diagnosis; and slowly progressive central nervous system process thought possibly to be MS, causing left lower extremity weakness and spasticity with pronounced limping gait unresponsive to all known treatments.  The Veteran was afforded a waiver.  His L2 profile was continued through the following years of reserve service.

In multiple records both prior to, during, and subsequent to his second and third periods of active duty service the Veteran denied back pain or muscle or joint problems that prevented exercise.  Indeed, the service treatment records include no complaints or treatment for low back problems either during or after his second and third periods of active service.  

That said, the Veteran now claims that his low back problems worsened as a result of his second and third periods of active service.  In this regard, the Board recognizes that the Veteran is competent to give evidence about symptomatology experienced by the senses; for example, a lay person is competent to discuss the existence of back pain or stiffness.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  In light of this evidence of increased low back symptomatology as a result of the Veteran's second and third periods of active service and the evidence of a preexisting low back disability, the Board finds that a VA examination is warranted to clarify the nature and etiology of the low back disability.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.)

1.  Schedule the Veteran for appropriate VA medical examination for his low back disability.  The claims file must be provided to the examiner for review and the examiner should note that it has been reviewed.  Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide an opinion on the following:

a)  Did any diagnosed low back disability clearly and unmistakably exist prior to the Veteran's second and/or third periods of active service (i.e. from February 2003 to December 2003 and from April 2004 to August 2004) and;

b)  Clearly and unmistakably undergo no permanent increase in severity as a result of military service; and

c)  Is it at least as likely as not that any diagnosed low back disability was aggravated beyond the natural progression of the disease by the Veteran's service-connected primary lateral sclerosis? 

The examiner should provide a complete rationale for any opinion provided.  If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes.  In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

2.  After the above is complete, readjudicate the Veteran's claim.  If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs